Eau Claire Fire Fighters, International Association of Fire Fighters Local No. 487,
AFL-CIO, herein the Union, requested the Wisconsin Employment Relations Commission to
designate a member of its staff as an arbitrator to hear and to decide a dispute between the
parties.
The City of Eau Claire, herein the City, concurred with said request and the undersigned was
designated as the arbitrator. Hearing was held in Eau Claire, Wisconsin, on August 19,
1996.
A stenographic transcript of the hearing was not made. The parties completed the filing of
post-hearing briefs on November 19, 1996.

ISSUES:

The parties were not able to stipulate to the issue and agreed that the arbitrator should
frame the issue.

The Union stated the issue as follows:

Was the City's reassignment of Kim Nessel from a twenty-four
(24) hour day, fifty-six (56)
hour week, to an eight (8) hour day, forty (40) hour week without the mutual agreement of
Local
487 unreasonable and violative of the contract?

The City stated the issue as follows:

Did the City violate the collective bargaining agreement when it
temporarily assigned Fire
Captain Kim Nessel to a 40-hour work week in order to train new recruits? If so, what is
the
appropriate remedy?

The arbitrator believes the City's statement of the issue to be an accurate statement of
the
dispute.

BACKGROUND:

At the time of the hearing in the instant matter, the City's Fire Department was
staffed by
a total of 88 employes. Employes assigned to the ranks of Captain, Lieutenant, Fire
Equipment
Operator, EMT/Paramedic, Firefighter or Shift Battalion Chief are shift employes. The shift
employes are assigned to one of three shifts and have a standard workday of 24 consecutive
hours
and a standard work week of an average of 56 hours. The shift employes work on a 27 day
cycle
which provides for 216 hours of work in each 27 day cycle (9 scheduled days x 24 hours per
day
= 216 hours). Under the Fair Labor Standards Act, herein FLSA, the overtime threshold
for
firefighters working a 27 day cycle is 204 hours. Thus, in each 27 day cycle the shift
employe
is scheduled to work 12 hours of overtime. The non-shift employes have a standard work
day of
8 hours and a standard work week of 40 hours.

In late 1995 or early 1996, the City scheduled a training session for new recruits to
commence on February 5, 1996. The training session typically consists of four consecutive
40
hour weeks and 8 hour days. Battalion Chief David Gee coordinates the training sessions.
Prior
to the training session which commenced on February 5, 1996, Gee did some of the training,
while other portions of the training were conducted by the on-duty shift Captains. Because
the
training by the Captains was conducted during their regular duty shifts, the training
occasionally
would be interrupted by runs in response to fire calls.

In early December of 1995, Captains Kim Nessel and Brad House met with David
Patrow,
the Deputy Chief of Operations in the Fire Department, to discuss their suggestions for
improving
the training of recruits. Nessel was concerned that the then-existing method of conducting
the
training was not consistent due both to the training sessions being conducted by several
individuals
and to the interruptions in the training caused by responses to fire calls. Nessel and House
thought
that the training would be more consistent if one off-shift person conducted the entire 4
weeks of
the training. Patrow agreed with that approach and asked Nessel if he would go off-shift and
run
the next training session. Nessel, who is a state certified instructor, agreed to that request.
Nessel
testified that he asked Patrow if he should contact David Tobisch, the Local Union President,
to
inform him that Nessel would be going off-shift and that Patrow said either he or
management
would contact Tobisch. Patrow testified that he did not recall any conversation about
contacting
or getting approval from Tobisch or the Union, but rather, he recalled saying that he would
need
to see if the Chief would approve of Nessel going off-shift due to the overtime cost of
replacing
Nessel as a Captain during that time. In either case, Tobisch first learned of Nessel's
transfer to
an off-shift status on January 22, 1996.

Nessel transferred from on-shift status, i.e., a 56 hour week, to an off-shift status,
i.e.,
a 40 hour week, on January 22, 1996. Nessel remained off-shift through March 1, 1996.
He did
not work any overtime hours during the six weeks that he was off-shift, but his wage rate
was
increased by approximately $5.00 an hour during said period of time.

On January 26, 1996, Tobisch filed a grievance alleging that the City had violated the
contract by transferring Nessel from a 56 hour work week to a 40 hour work week. Said
grievance became the basis for the instant proceeding.

For a considerable, but unspecified, number of years, the City has temporarily
transferred
employes from a 56 hour per week on-shift schedule to a 40 hour per week off-shift schedule
on
numerous occasions either to allow employes to attend courses at the National Fire Academy,
or,
to accommodate employe requests for light duty assignments. On two occasions during the
early
1990's, the City has used the same type of schedule changes to fill, on a temporary basis,
vacancies in the position of inspector.

POSITION OF THE UNION:

The City waived its right to unilaterally change the work shifts of the Captains. In
Article
III of the contract, the City recognizes the Union as the exclusive bargaining representative
of the
bargaining unit employes and acknowledges a duty to bargain over hours of work. The
product
of that bargaining is Article IX, which provides that the standard schedule for all shift
employes
is a 24 hour day and a 56 hour week. The word "standard" does not give the City the
managerial
flexibility to unilaterally change the work schedules of shift personnel.

The management rights clause, Article IV, is subordinated to the rest of the contract.
The
hours of work provision abridges and modifies the management rights clause by defining the
work
day and the work week in unambiguous, specific, mandatory fashion.

Prior to the class in February of 1996, the bulk of the recruit training was performed
by
Battalion Chief Gee, with various Captains provided training while on-shift. Never before
has
a Captain been assigned training duties on an 8 hour day and a 40 hour week schedule.
Even the
job description for Captains clearly provides for them to perform training on-shift. By
assigning
Nessel to train recruits on an off-shift schedule, the City created a new work rule affecting
hours
of work. New rules affecting hours of work are subject to negotiations and mutual
agreement
under Article XXX, Section 2 of the contract. The City did not fulfill its bargaining
obligation
before reassigning Nessel.

The Union has never agreed that the City has a unilateral right to reschedule shift
employes. The arrangements by which employes may be assigned off-shift to attend the
National
Fire Academy courses or to perform light duty are both of a long-standing nature and have
been
approved by the Union. The Union also has agreed twice to allow the City to fill Inspection
Department vacancies by reassigning shift employes to an 8 hour day and a 40 hour week.
Thus,
the Union has agreed to allow the City to change the work schedule of shift employes for a
few
well defined reasons, but it has never agreed to a blanket waiver of the hours of work
provision.

If the City is allowed to unilaterally alter the work schedules of the employes, such
changes
could have an impact on the personal lives of the employes when they make plans based on
their
standard work schedule.

The City's claim to the exclusive authority to make temporary assignments and/or
change
work schedules cannot be supported without a revision of the contract. The City should not
be
allowed to achieve through arbitration a right which it has refused to seek in bargaining.
The
grievance should be sustained.

POSITION OF THE CITY:

The Union failed to prove that Nessel's acceptance of the temporary training
assignment
was contingent upon approval of the Union. Patrow did not recall Nessel raising that
condition.
However, Patrow did recall stating that he would need the Chief's approval of the assignment
since it would likely result in increased overtime.

The contract does not require the City to obtain the Union's approval before making
an
assignment change, even where it results in a switch from a 56 hour work week to a 40 hour
work
week. Under the contractual management rights clause, the City possesses exclusive
authority to
make temporary assignments and/or to change work schedules. There is no contractual
provision
which specifically and expressly limits the City's right to temporarily change a work
assignment.

Article IX merely sets forth the standard work day and work week. The inclusion of
the
work "standard" denotes a recognition by the parties that "non-standard" work schedules can
occur, especially where the changes are only temporary in nature. After the training was
completed, Nessel returned to his standard 56 hour work week on-shift schedule. Moreover,
Nessel received the same bi-weekly salary during his temporary assignment as he would have
received if he had been on his 56 hour work week.

The City's temporary assignment of Nessel to training duty was not arbitrary,
capricious
or in bad faith. There was a specific operational objective behind Nessel's temporary
assignment.
The new recruits needed to be trained. Nessel was qualified to train them and he
volunteered to
train them. He is a state certified fire instructor who teaches courses at
Chippewa Valley
Technical College. Training is an integral and essential part of Nessel's job duties as a
Captain,
as illustrated by the job description for a Captain.

Past practice supports the City's actions. It has not been uncommon for 56 hour
employes
to temporarily switch to 40 hour assignments. Employes who have attended the national fire
academy for training have temporarily switched from their standard 56 hour on-shift
schedules to
40 hour off-shift schedules. When firefighters have requested light duty assignments, they
have
been switched from 56 hour on-shift schedules to 40 hour off-shift schedules. Both of said
types
of schedule changes have occurred without approval, objection or input from the Union. In
addition, on two separate occasions during the early 1990's, employe promotions resulted in
vacancies in the position of inspector, which is a 40 hour off-shift position. In both cases,
the
City posted a notice to employes to advise them that the City would fill the vacancy on a
temporary basis until a more formal promotion process could be completed. Both vacancies
were
filled temporarily by shift employes who switched to 40 hour off-shift schedules. The Union
did
not either object to or approve of those changes. There is no evidence to support the
Union's
claim that it had agreed to allow temporary assignments from on-shift to off-shift status in
the
three foregoing situations.

The City did not establish a new work rule in the instant matter. Accordingly,
Article III
does not apply. Neither did Nessel's temporary assignment violate an existing work rule.
Therefore, the City had no duty to bargain with the Union over that assignment.

The City requests that the grievance be denied.

RELEVANT CONTRACTUAL PROVISIONS:

ARTICLE II

DEFINITIONS

. . .

H. "Grievance" shall mean a claimed violation,
misinterpretation or misapplication of
the existing rules, wages, procedures, or regulations covering working conditions applicable
to
the employees of the department and shall include all claimed violations, misinterpretations,
or
misapplication of the provisions of this Agreement. The term "wages" herein shall have no
relation to the establishment or changing of wage scales or rates of new or changed jobs or
to any
provision of the retirement system or the Employees Benefit Plan.

. . .

ARTICLE III

UNION RECOGNITION AND
ACTIVITIES

. . .

Pursuant to and in accordance with all applicable provisions of
Chapters 111.70 and 111.77
of the Wisconsin Statutes, the City hereby recognizes the Union as the exclusive
representative
for the purpose of collective bargaining in respect to rates of pay, wages, hours of
employment
and conditions of employment for all non-civilian uniformed employees of the City's Fire
Department for the term of this Agreement.

. . .

ARTICLE IV

MANAGEMENT RIGHTS

Section 1. It shall be the right of the City to
operate and manage its affairs in all
respects in accordance with its responsibility, and the powers or authority which the City has
not
specifically abridged, delegated, or modified by other provisions of this Agreement are
retained
by the City. Such powers and authority, in general, include, but are not limited to, the
following:

A. To determine the mission of the agency, set standards of
service to be offered to
the public, exercise control and discretion over its organization and operations, and to utilize
personnel in the most appropriate and efficient manner possible.

. . .

C. To establish or alter the number of shifts, hours of work,
work schedules, vacation
schedules, methods, processes, and means and ends.

. . .

F. To create new positions or divisions and to introduce
new or approved operations or work
practices and to permanently or temporarily terminate, consolidate, transfer, or modify
existing
positions, divisions, operations and work practices.

Any unresolved grievances which relate to the interpretation,
application, or enforcement of
any specific article and section of this Agreement or any written supplementary agreement
and
which has been processed through the last step of the grievance procedure, may be submitted
to
arbitration in strict accordance with the following:

. . .

Section 3. The arbitrator shall limit his/her
decision strictly to the interpretation,
application, or enforcement of this Agreement and shall be without power and authority to
make
any decision contrary to, or inconsistent with, or modifying or varying in any way, the terms
of
this Agreement.

. . .

ARTICLE IX

HOURS OF WORK

Section 1. The standard workday for all shift
employees shall consist of twenty-four
(24) consecutive hours and the standard work week shall consist of an average of fifty-six
(56)
hours, Monday through Sunday inclusive (according to the California Plan). For purposes of
complying with the Fair Labor Standards Act only, this schedule shall be based on a 27 day
cycle.

Section 2. The standard workday for all
non-shift employees shall consist of eight (8)
hours not to include a lunch period. The standard work week shall consist of an average of
forty
(40) hours.

. . .

ARTICLE XXX

WORK RULES

Section 1. Existing work rules are made part
of this Agreement.

Section 2. The establishment of new work
rules affecting wages, hours of work, or
conditions of employment shall be subject to negotiations and mutual agreement prior to their
effective date.

. . .

DISCUSSION:

The parties are in agreement with the concept that an employer has the right to assign
and
schedule work to the extent that its authority to do so has not been restricted by other
provisions
of the contract. The parties disagree over the extent of such restrictions in the relevant
contract.
Section 1 of Article IV does state that the City has the right to establish or alter work
schedules.
However, said right is not unrestricted. Article IX defines the standard work day and the
standard
work week for both shift and non-shift employes. The Union contends the provisions of the
contract, particularly Article IX, show that the City has waived its right to unilaterally
change
employe schedules and must obtain the Union's agreement before an employe's schedule can
be
changed. Conversely, the City contends that its right to alter an employe's work schedule on
a
temporary basis is specified in Article IV and is not restricted by other provisions of the
contract.

The undersigned has reviewed numerous arbitration awards, including those cited in
the
briefs of both parties. The Union relied heavily on City of Warr Acres, 87 LA
127 in support of
its position that the contractual definition of the standard work day and the standard work
week
limited the management rights clause. In said case, apparently the employer implemented a
permanent change in the work schedule by occasionally reducing a sufficient number of shifts
in
each 28 day work cycle from 24 hours to 20 hours so as to ensure that the scheduled hours
for
each firefighter would not result in overtime pay. Such a permanent change is different from
the
temporary change at issue herein. Therefore, that decision is distinguishable from the instant
case.

The Union asserts that there is a long-standing practice whereby employes are not
moved
from one type of work week to the other type of work week without the approval of the
Union.
As evidence of such a practice, the Union points to the absence of any objection by it, either
as
a grievance or in some other form, to temporary transfers made by the City in the following
situations: (1) to allow employes to attend courses at the National Fire Academy; (2) to
accommodate employe requests for light duty assignments; and, (3) to temporarily fill
vacancies in the inspector position. Tobisch testified that the practice of making temporary
transfers for the
foregoing three reasons was in existence when he was hired by the City, which hire was over
26
years before the instant case arose. Tobisch also testified that, because the Union approves
of
temporary transfers for those reasons, there is neither any need to approve each individual
transfer
which falls into one of those categories, nor, is there any need to state the practice in
writing.
While such an explanation is plausible, so is the following explanation offered by the City.
The
City believes the absence of any prior grievances, relating to temporary transfers, shows that
the
Union has recognized the City's retention of the right to make temporary transfers for
legitimate
reasons without prior approval or input from the Union. Tobisch did not testify to any
instances,
prior to the instant proceeding, in which the City attempted to make a temporary transfer,
but the
transfer was not made because the Union refused to give its approval to the transfer.
Further,
there is no evidence to show that the Union was ever asked to give its approval to temporary
transfers which were made for one of the three reasons set forth above. Faced with such a
background, the undersigned finds the City's explanation for the absence of any grievances
over
prior temporary transfers to be more persuasive. Accordingly, the past practice supports the
City's position.

If one were to look at the contractual language, without considering any past practice,
the
undersigned finds the City's arguments to be more convincing. The Union avers that, by
agreeing
to the use of the word "standard" in Article IX to describe the work day and the work week,
the
City gave up the right to make unilateral scheduling changes. The undersigned does not
believe
said provision prohibits the City from making temporary transfers of employes between the
two
types of schedules for valid reasons. Adopting the Union's interpretation would cause the
word
"standard" to mean "only" or "sole." Rather, the use of the word "standard" implies that
there
may be abnormal or non-standard schedules which vary from the standard work day and/or
work
week. Such would be the case also if the language used normal or regular, instead of
standard,
to describe the work days and work weeks. Further, if the parties had agreed that an
employe
could be moved from the shift schedule to the non-shift schedule, or vice versa, only with
the
Union's approval, then the parties easily could have used language to reflect such an
agreement.

It is clear that Patrow concurred with the suggestions of Nessel and House for
revising and
improving the training session. One of those suggestions was to assign one employe to be
with
the trainees during the entire four weeks, rather than to have a number of instructors conduct
different parts of the training. Nessel was qualified to coordinate and lead the training
session.
When asked by Patrow, Nessel agreed to take the assignment. Thus, the City had a
reasonable
basis for temporarily assigning Nessel to an off-shift schedule to conduct the training session.
Although the City did not need the Union's approval to temporarily transfer Nessel from an
on-shift schedule to an off-shift schedule, the City should have informed the Union of the
change in
Nessel's shift prior to the change going into effect. It was not Nessel's responsibility to
inform
the Union of the change in his schedule.

The undersigned does not agree with the Union's assertion that the City created a new
work rule when it required Nessel to perform training off-shift. Thus, the City's actions did
not
violate Article XXX.

The evidence submitted does not show that Nessel lost any earnings as a result
of the
temporary change in his schedule, since he received the same bi-weekly salary for the
40-hour
work weeks as he received for his normal 56-hour work weeks.

After considering the evidence and the arguments of the parties, the undersigned
enters the
following

AWARD

That the City did not violate the collective bargaining agreement when it temporarily
assigned Fire Captain Kim Nessel to a forty hour work week in order to conduct a training
session
for new recruits; and, that the grievance is denied and dismissed.